Citation Nr: 21075844 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-38 353 DATE: December 21, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, anxiety disorder, and depressive disorder, is denied. FINDING OF FACT The Veteran's acquired psychiatric disorder did not originate in service and is not otherwise etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1978 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, this matter was previously before the Board in December 2019 and June 2021, when it was remanded for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, anxiety disorder, and depressive disorder, is denied. During the July 2019 hearing, the Veteran testified that he was repeatedly attacked by another airman in tech school and indicated that he has had anxiety, episodes of depression, and PTSD symptoms since the in-service assaults. The Veteran stated that he did not seek medical treatment or initially report the harassment to anyone, other than his roommate, until he eventually broke down and told his staff sergeant about the assaults, but no action was taken. See July 2019 Hearing Transcript, pages 3, 6-10. In the August 2019 attorney brief, the Veteran stated that after the assaults began, he experienced nighttime urinary incontinence and was told by other recruits that he had started screaming in his sleep. The Veteran reported that he believed he would be allowed to go home if he did not pass his training, and after he honestly failed one of his training examinations twice, he failed the third time on purpose. See August 2019 Military Personnel Record; see also July 2019 Hearing Transcript, pages 12-16. A review of the service treatment records (STRs) shows an April 1978 enlistment report of medical examination that is absent for findings pertaining to the Veteran's psychiatric and neurologic systems. A June 1978 record indicates that the Veteran was referred to be evaluated at the mental hygiene clinic after he failed the Block Two Measurement Examination three times. The mental health evaluation indicated that the Veteran reported that he could not remain in the service due to the fact that his father had three nervous breakdowns. He further stated that he was also having problems academically due to having only a 10th grade education. Upon evaluation, no apparent mood or thought disturbance or mental health disorder was found. The diagnosis was no mental health disorder. The Veteran denied frequent trouble sleeping, depression or excessive worry, and nervous trouble of any kind on his June 1978 separation report of medical history. To this end, the examiner determined that the Veteran had not experienced a significant illness or injury since induction and medically cleared him for separation. Thereafter, a June 1978 narrative reason for separation indicates that the Veteran was involuntarily discharged as a "marginal or nonproducing performer while assigned to recruit or initial skill training." See March 2015 STR Medical; May 2015 Military Personnel Record. A review of the post-service treatment records shows that the Veteran underwent a psychological assessment in October 2004. During the assessment, the Veteran reported that he overdosed on methamphetamine and alcohol. The private psychiatric resident who performed the assessment noted that the Veteran had also been in detox approximately one and a half years prior at a Crisis Center but indicated that he had not been in any other treatment. In addition, the Veteran denied any past psychiatric history. Initial diagnoses included substance induced mood disorder, substance induced psychosis, methamphetamine abuse, and alcohol abuse. He was not diagnosed with any other psychiatric disorders at that time. A December 2011 evaluation and referral shows that the Veteran had a long history of substance abuse and substance induced mood disorders and psychosis and that he was non-compliant with medication. Thereafter, private treatment records, dated in April 2012, indicate that the Veteran had stopped taking his medication approximately two months prior because he was "too busy[,]" and show that he became severely depressed after his girlfriend broke up with him. At that time, the Veteran reported that he had been drinking excessive amounts of alcohol since he was 15 years old and indicated that he had been verbally and physically abused by his father during childhood. He further stated that he served on active duty for 77 days but indicated that he "failed all the test[s] and then left[.]" However, the Veteran did not report any in-service assaults or indicate that his diagnosed psychiatric disorders may have been etiologically related to his service at that time. In addition, he did not report prior psychiatric diagnoses, but did state that he had been admitted for inpatient psychiatric treatment for drug induced psychosis and alcohol psychosis. The assessment included alcohol dependence, amphetamine dependence, and mood disorder not otherwise specified. See June 2019 Medical Treatment Record Non-Government Facility. VA and private medical treatment records show that the Veteran has been consistently diagnosed with bipolar disorder, anxiety disorder, and depressive disorder since May 2014. See, e.g., May 2016 CAPRI; June 2019 Medical Treatment Record Non-Government Facility. The Veteran filed his claim for service connection in 2014. In November 2016, a VA provider diagnosed the Veteran with PTSD, alcohol use disorder, and an unspecified depressive disorder. At that time, the Veteran reported a history of physical abuse by his father but described his childhood as generally good. He further stated that he did not believe his childhood continued to have a negative impact on his life but indicated that he never truly recovered from his reported in-service assaults. The examiner noted that the Veteran reported feelings of resentment and frustration related to his inaction in service and that he has continued to feel shame related to the perception of being weak and for being discharged from the military. See April 2019 VAMC Other Output/Reports. A December 2016 mental health physician note shows that the Veteran's chronic PTSD came from in-service trauma involving multiple attacks by another airman. See April 2019 CAPRI. The Veteran was afforded a VA examination for PTSD in October 2020. The examiner diagnosed the Veteran with alcohol use disorder, stimulant use disorder, amphetamine type substance, and stimulant use disorder, cocaine, which were manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant symptoms or symptoms controlled by medication. During the examination, the Veteran reported that he was sexually assaulted during service. Specifically, he stated that another airman grabbed him by the testicles and threw him from a balcony. The Veteran further indicated that the other airman repeatedly physically assaulted him, hitting him at least once per day, but also stated that he was not physically injured and did not seek medical care following any of the alleged assaults. After performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's diagnosed alcohol and stimulant use disorders were incurred in or caused by the claimed in-service injuries, events, or illnesses. In support of her opinion, the examiner noted that the Veteran's addiction issues began after he was discharged from active duty service. In addition, the examiner found the Veteran's reported in-service assaults lacked credibility but indicated that his statements that he "wanted out of the military" were credible. See October 2020 C&P examination. In support of his claim, the Veteran submitted a private Disability Benefits Questionnaire (DBQ) for mental disorders, from K. Brennan, a licensed professional counselor, and Dr. J. Irwin, dated in November 2020. The Veteran was diagnosed with major depressive disorder due to sentinel events, generalized anxiety disorder, PTSD, and severe alcohol use disorder, which were manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. During a tele-interview, the Veteran reported that another airman threw him off a second story fire escape exit door during service. In addition, the Veteran stated that he began drinking during basic training and indicated that his alcohol use escalated after the attacks began. To this end, the Veteran stated that he ultimately failed a test three times so he could be discharged. Brennan and Dr. Irwin noted sentinel events, to include basic training, fever, and the Veteran's hepatitis C diagnosis. Specifically, they found that the Veteran was assaulted, beaten, and fondled in his dormitory over a period of several weeks and that he did not report the assaults during service. Following the examination, Brennan and Dr. Irwin opined that it was most likely than not that the Veteran's depressive disorder due to sentinel events was caused by exposures sustained while he was serving on active duty. In this regard, Brennan and Dr. Irwin indicated that they conducted a tele-interview with the Veteran and reviewed his DD-214 in connection with their opinion but did not otherwise provide rationale. See December 2020 VA examination. After a review of the evidence of record, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, anxiety disorder, and depressive disorder, is not warranted. In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, post-service treatment records show that the Veteran has been consistently diagnosed with bipolar disorder, anxiety disorder, and depressive disorder since May 2014. See, e.g., May 2016 CAPRI; June 2019 Medical Treatment Record Non-Government Facility. In addition, a VA provider diagnosed the Veteran with PTSD, alcohol use disorder, and an unspecified depressive disorder in November 2016, and the November 2020 private DBQ for mental disorders notes diagnoses for major depressive disorder due to sentinel events, generalized anxiety disorder, PTSD, and severe alcohol use disorder. See April 2019 VAMC Other Output/Report; December 2020 VA examination. Accordingly, the remaining question is whether the Veteran's diagnosed acquired psychiatric disorder is related to service. Concerning the second element of service connection, the Board notes that the Veteran's STRs do not reflect any complaints, treatment, or diagnoses of psychiatric or neurologic disorders during service. To this end, although the STRs confirm that the Veteran failed the Block Two Measurement Examination three times, they are otherwise silent for evidence to corroborate his reported in-service assaults. In this regard, the Board has considered the Veteran's report that he was repeatedly attacked by another airman in tech school, to include one instance during which he was grabbed by the testicles and thrown from a balcony. The Board further notes the Veteran's reports that he was not physically injured and did not seek medical treatment following any of the alleged assaults and that when he eventually broke down and reported the harassment to his staff sergeant no action was taken. See July 2019 Hearing Transcript, pages 6-10; October 2020 C&P examination. However, the Board finds that the evidence of record fails to support, and in some instances directly contradicts, the Veteran's statements regarding his alleged in-service assaults. In this regard, the STRs show that the Veteran reported that his father had multiple nervous breakdowns and that he was having problems due to his 10th grade education during a June 1978 mental health evaluation. However, the Veteran did not report any in-service assaults to the mental health examiner and no apparent mood or thought disturbance or mental disorders were found on examination. Moreover, the Veteran explicitly denied trouble sleeping, depression or excessive worry, and nervous trouble of any kind on his June 1978 separation report of medical history. See March 2015 STR Medical; May 2015 Military Personnel Record. In addition, the Board finds it significant that the Veteran did not report any in-service assaults during the October 2004 psychological assessment or the December 2011 evaluation and referral. Moreover, subsequent private treatment records, dated in April 2012, show that the Veteran became severely depressed after his girlfriend broke up with him. At that time, the Veteran reported that he was verbally and physically abused by his father during childhood and indicated that he began consuming excessive amounts of alcohol when he was15 years old, approximately two years before service. In addition, although the Veteran told the private physicians that he served on active duty for 77 days, "failed all the test[s,] and then left[,]" he did not report any in-service assaults or otherwise intimate that his symptoms may be related to his active duty service. See June 2019 Medical Treatment Record Non-Government Facility. The Board further notes that the October 2020 VA examiner found the Veteran's reported in-service assaults lacked credibility but found that his assertion that he "wanted out of the military" to be credible. See October 2020 C&P examination. Thus, the Board finds that the Veteran's reported in-service personal assaults lack credibility because they are contradicted by contemporaneous medical evidence, to include the STRs, the October 2020 VA examination report and medical opinion, and the cumulative medical evidence of record. See Gardin v. Shinseki, 613 F.3d 1374, 1379 (Fed. Cir. 2010) (stating that the Board acted appropriately in its fact-finding role in its determination that lay statements of record were not credible because they are in direct contradiction to the medical evidence of record). In this regard, contemporaneous evidence may have greater probative value than history as reported by the Veteran at a later date. Curry v. Brown, 7 Vet. App. 59, 68 (1994). Thus, the Board finds that the more probative evidence of record weighs against the credibility of the stressor events, initially alleged by the Veteran after he filed his claim for service connection. The Board has also considered the Veteran's assertion that he has been experiencing anxiety, episodes of depression, and PTSD symptoms since service. See July 2019 Hearing Transcript, page 3. However, the Board finds that the most probative evidence of record reflects that the Veteran did not report psychiatric symptoms until many years after his separation from service. In this regard, as noted above, no apparent mood or thought disturbances or mental disorders were found during the Veteran's June 1978 mental health evaluation, and he explicitly denied trouble sleeping, depression or excessive worry, and nervous trouble of any kind on his June 1978 separation report of medical history. See March 2015 STR Medical; May 2015 Military Personnel Record. The Board further notes that the Veteran denied past psychological symptoms and treatment during his October 2004 psychological assessment. In addition, the Veteran's post-service medical treatment records show that he has been consistently diagnosed with bipolar disorder, anxiety disorder, and depressive disorder since May 2014, approximately 36 years after he was discharged from active duty service. See June 2019 Medical Treatment Record Non-Government Facility; May 2016 CAPRI; June 2019 Medical Treatment Record Non-Government Facility. Thus, the Board also finds the Veteran to be an inaccurate historian as to the onset of his psychiatric symptoms because his reports are contradicted by the contemporaneous medical evidence, to include the STRs and the cumulative medical evidence of record. See Gardin, 613 F.3d at 1379; Curry, 7 Vet. App. at 68. As such, the Board finds that the more probative evidence of record weighs against finding that the Veteran's psychiatric symptoms manifested during or immediately after service. The Board further notes that there are conflicting medical opinions of record. To this end, the Board finds the October 2020 VA medical opinion to be the most probative evidence of record. In this regard, the Board finds the opinions proffered by the November 2016 and December 2016 VA providers to be inadequate because the examiners did not provide rationale to support their opinions. Similarly, the Board finds the November 2020 private medical opinion from Brennan and Dr. Irwin inadequate because they did not include rationale to support their finding that the Veteran's depressive disorder due to sentinel events was caused by exposures sustained while he was serving on active duty, beyond noting that they conducted a tele-interview with the Veteran and reviewed his DD-214 in connection with their opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, the Board finds the aforementioned medical opinions speculative as they appear to be based solely upon the Veteran's lay statements, which have been shown to be unreliable. To this end, there is no indication that the Veteran's claims file, to include his STRs and post-service treatment records, were reviewed in connection with any of the opinions. Thus, the Board finds that the opinions proffered by the November 2016 and December 2016 VA providers and the private medical opinion from Brennan and Dr. Irwin, dated in November 2020, are based, at least in part, on an incomplete factual premise, and as such, are inadequate to adjudicate the issue on appeal. See Reonal v. Brown, 5 Vet. 458, 461 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). In contrast, the Board finds the October 2020 VA medical opinion to be the most probative evidence of record. To this end, after performing an examination and reviewing the evidence of record, the examiner opined that it was less likely than not that the Veteran's diagnosed alcohol and stimulant use disorders were incurred in or caused by the claimed in-service injuries, events, or illnesses. In support of her opinion, the examiner noted that the Veteran's addiction issues began after he was discharged from active duty service and indicated that she believed that the Veteran's reported in-service assaults lacked credibility; however, she found his reports regarding "want[ing] out of the military" to be credible. See October 2020 C&P examination. In this regard, the Board finds that the October 2020 VA examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided an adequate supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the Veteran's arguments challenging the adequacy of the October 2020 VA examination. Specifically, the Veteran argued that the October 2020 VA examiner failed to explain or analyze the significance, if any, of evidence that may corroborate his alleged stressor events, to include failing his military training examinations, statements regarding wanting to get out of the military and using several means to do so, post-service substance abuse history, mental health treatment records showing varying diagnoses, suicidal ideation, and in-patient treatment, history of criminal activity, and history of failed romantic relationships, when she determined that his statements regarding the in-service assaults lacked credibility. See March 2021 Third Party Correspondence. However, for the reasons discussed above, the Board finds that the Veteran's reported in-service personal assaults lack credibility, and as such, that no such explanation or analysis was required. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, the Board finds the Veteran's argument unpersuasive. The Board further notes that the October 2020 VA examiner did not address whether the Veteran's PTSD, bipolar disorder, anxiety disorder, and depressive disorder were related to his claimed in-service stressor events. However, as the Veteran's reported in-service assaults have been found to be not credible, the Board finds that no such medical opinion was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. Lastly, the Board acknowledges the Veteran's statements that his acquired psychiatric disorder is related to his active duty service. However, the question of whether such a relationship exists is a complex medical issue that is far beyond the purview of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (providing that the question of whether lay evidence is competent and sufficient is an issue of fact that is to be addressed by the Board); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted."). Accordingly, the Board finds that the second and third Shedden requirements have not been met. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for entitlement to service connection for an acquired psychiatric disorder. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.